Why Obamacare Will Survive Court Politics

It’s the judicial-political question of the moment: How will the U.S. Supreme Court rule on Obamacare? The justices are scheduled to hear oral arguments this week during an extraordinary six-hour proceeding spread over three days. A ruling is expected by mid-summer, just in time to jolt the general presidential campaign.

The most interesting—and possibly most depressing—light we’ve seen shed on the high court case comes from an exclusive Bloomberg News poll which was conducted earlier this month and did not get nearly enough attention. Our Bloomberg cousins found that “an overwhelming majority of Americans think that the Supreme Court justices’ political views will influence how they vote on the Obama health care reform” challenge.

The poll, based on interviews with 1,002 adults ages 18 and older, indicated that 75 percent of Americans think politics will influence the justices’ votes, while only 17 percent think the Supremes will vote solely on the legal merits. Eight percent weren’t sure. (The margin of error was plus or minus 3.1 percentage points.)

In short, we the people don’t believe a central premise of junior high school civics: The judiciary operates according to the dictates of the Constitution and other laws, as opposed to raw politics and personal preferences.

Why does this matter to the fate of the Affordable Care Act? Well, for one thing, it may make irrelevant an awful lot of chin-pulling about what the Commerce Clause precedents say about the most important high court case of the year. If the outcome turns on partisan politics, Republicans vs. Democrats, the constitutionality of the law’s requirement that people buy health insurance is beside the point. The challengers seeking to stop the health law, if not Obama’s very reelection, will win because they have five conservative votes on the high court. (See Bush vs. Gore, the Supreme Court ruling that handed the White House to George W. Bush.)

Maybe it’s not that simple.

A quick look at the relevant precedents would seem to favor the Obama administration in defending health reform. The 2005 Supreme Court ruling in Gonzales vs. Raich upheld Congressional authority under the Commerce Clause to criminalize cultivation of marijuana for medicinal purposes. If Congress can outlaw non-commercial backyard pot, one would think it can regulate health care, which accounts for 17 percent of U.S. G.D.P. Linda Greenhouse of Yale Law School persuasively makes the argument here in her New York Times “Opinionator” blog. And note: Conservative Justice Antonin Scalia wrote a concurrence in the marijuana case, which would be difficult for him to wriggle out of in the health-care decision.

Then there’s United States v. Comstock, decided only two years ago, in which the Supreme Court gave a notably broad interpretation to Congress’s authority to pass legislation that it considers “necessary and proper.” (That ruling upheld a federal law imposing extended detention for certain sexual predators who had finished their criminal prison sentences.) Chief Justice John Roberts and Justice Samuel Alito, who hadn’t been on the court to participate in Raich, both voted with the majority in Comstock. So did Justice Anthony Kennedy, a moderate Republican who is widely and justifiably viewed as the high court’s “swing vote” in ideologically tinged cases.

Based on precedent, then—and prior votes of Scalia, Roberts, Alito, and Kennedy—the health-care case might look like a slam dunk for the White House. Unless the Bloomberg News poll respondents are right, and the high court’s Republicans simply decide to undercut the President in an effort to tilt the November election to his Republican adversary.

Or maybe the cynicism revealed by the Bloomberg poll will cause some justices to do a double back-flip and vote to uphold Obamacare out of concern for the Supreme Court’s reputation.

Dahlia Lithwick, the savvy court-watcher at Slate.com, points out that the “the current court is almost fanatically worried about its legitimacy and declining public confidence in the institution.” Roberts, notes Lithwick, nodded to “the court-wide anxiety by devoting most of his 2011 State of the Judiciary report to issues of recusal and judicial integrity, and by reversing his own policy on same-day audio release, in order to allow the American public to listen in on the health-care cases.” The justices, in other words, know that Americans will be listening, if not literally watching, their deliberations over ACA. To hand down a sharply divided 5-4 ruling along party lines would confirm the grim expectations of the Bloomberg poll respondents—and further undercut the court’s legitimacy as an independent and nonpartisan institution.

With all that in mind, here’s my prediction, based both on the merits and the optics: a spirited oral argument followed by a lopsided ruling upholding the health insurance mandate. Eight-to-one, with only Justice Clarence Thomas in dissent.